‘Kush’ Incense Produces Legal Headache

HOUSTON (CN) - The creator of an herbal incense blend called Kush claims a former distributor concocted a hazardous counterfeit product "so pernicious that Time Magazine recently ran an article" on it, and he says his former partner stole his trade dress and name to push the stuff.

In its complaint in Harris County Court, JPL Business fka Kush Novelties claims that Tim's Wholesale is illegally using its Kush mark to sell a "very dangerous" bath salt product under the name "Kush Blitz."

JPL's founder, nonparty Joshua Lambert, says he designed the Kush logo, brand and blend in June 2010, and began marketing it to gas stations and convenience stores in Baton Rouge, Louisiana.

Sales took off and Lambert was introduced to Tim Tran, owner of defendant Tim's Wholesale, who became his main distributor, according to the complaint.

It states: "Although the products sold by Kush Novelties were used, and intended to be used for safe and legal purposes, on or about August 15, 2010, the manufacture, possession and distribution of herbal incense became officially banned in the State of Louisiana. Subsequently, Tran approached Lambert with a business proposition in which Tran would fund Lambert's operation and acquire all of the supplies needed to produce Kush in bulk, and in return, Tran would be able to purchase Kush at a much-discounted rate (50% below the other distributors.)"

Lambert moved JPL Business operations to Houston, then the U.S. Drug Enforcement Administration announced that a ban on herbal incense products would become effective before Christmas Day 2010, prompting Lambert and Tran to sell all their inventory of Kush incense, and split the profits.

But the complaint states: "Subsequently, the ban on herbal incense was not implemented. Once Mr. Tran got wind of this, he proceeded with the counterfeiting and the selling of Lambert's KUSH products."

Though Tran later called Lambert at his attorney's office and assured him he was no longer selling Kush products, shortly thereafter he began claiming he was 51 percent owner of the Kush brand name, and he purchased from Lambert's Chinese supplier 1 million empty Kush bags, claiming that he was still in business with Lambert, according to the complaint.

"Tran is now selling these counterfeit empty bags to several wholesalers in the Houston area who are filling them with inferior product for the purpose of undercutting Lambert's prices, and in turn stealing sales and profits from JPL," the complaint states.

JPL Business seeks damages from Tim's Wholesale and from distributors Jubilee Global Wholesale, VIP Wholesale, Salem Wholesale and Diamond Wholesale, alleging unfair competition, trade dress infringement. JPL also seeks an injunction to stop the defendants from using its trademarks.

JPL is represented by Charles Vethan of Houston.

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